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Wednesday, May 31, 2006

Signing off

Thanks again to Dan and all the Prawfs for giving me the chance to try out blogging.  I learned a lot from the experience and the commentary.  As a parting post, here's a link to my Slate piece on the right to counsel.  Have a great summer.

Posted by SashaNatapoff on May 31, 2006 at 07:17 PM | Permalink | Comments (0) | TrackBack

Hasen on the VRA

Rick Hasen has a nice article on Findlaw about the VRA.  It is very useful in providing an accessible introduction to debates surrounding the renewal of Section 5 (the "preclearance" provision).  His central thesis is that a renewed unmodified Section 5 may very likely be struck down by the Roberts Court on New Federalism principles emanating from Boerne.

The Supreme Court, as part of its "New Federalism" jurisprudence, has recently been limiting the ability of Congress to pass civil rights laws. Beginning with the 1997 case of City of Boerne v. Flores, the Court has held that Congress must produce a strong evidentiary record of intentional state discrimination to justify laws that burden the states. In addition, whatever burden is placed on the states must be "congruent and proportional" to the extent of the violations.

Under this standard, Congress could well have an evidentiary problem with a renewed section 5, for several reasons:

First, because the Act has been so effective as a deterrent it will be hard to produce enough evidence of intentional discrimination by the states so as to justify the extraordinary preclearance remedy for another 25 years. Although the House record for VRA renewal runs for literally thousands of pages, there's just not that much in it that shows that the states covered under section 5 are engaging in patterns of intentional racial discrimination.

Indeed, DOJ rarely objects to any voting changes submitted for preclearance anymore. From 1998-2002, DOJ objected to a meager 0.05% of preclearance requests.

Second, the House record seems to show that the problems that do continue to exist occur across the nation, not just in the covered jurisdictions. So the Court may insist on evidence that the covered jurisdictions present greater problems than the rest of the nation to justify the geographically-selective preclearance remedy.

Rick surely has a point.  But my sense from a fresh teaching of this line of cases is that the Court will remain deferential to race-related exercises of Congress's Enforcement Clause powers and that Rick shouldn't worry too much.  Even Scalia agrees that the Enforcement Clauses furnish Congress with substantial discretion in the area of racial remediation.

Rick's got other reasons to think the VRA should be modified before it is renewed -- and his characteristically insightful thoughts are worth reading for yourself.  But let me know if you think I'm underestimating Rick's worry.

Posted by Ethan Leib on May 31, 2006 at 05:43 PM in Article Spotlight | Permalink | Comments (4) | TrackBack

Pro Bono Work and Law Professors

I've been thinking about pro bono work lately, for non-lawyer professors. I was once a practicing attorney, but now my license is inactive and I don't practice law (bar authorities, please take note). Technically, then, I may not have an obligation under Model Rule 6.1 to perform at least 50 hours of pro bono work each year.

Still, one of the ways I earn my paycheck is to serve as a professional role model for my students. I feel a real obligation to perform some equivalent of the classic pro bono work of the lawyer. Which activities of a law professor might qualify as pro bono work that perfectly parallels the pro bono work of a lawyer? Surely I can't count committee work (internal or external) that the law school would ask me to do anyway. Way too convenient! And I cannot represent clients, since I no longer hold an active license to practice. I do count service on boards of legal organizations like this one relating to prisoner access to courts, but I don't count service on community organizations that have no particular connection to the legal system. Are there other parts of the professor's job that truly parallel the pro bono work of the lawyer who provides free services to an indigent individual client?

Posted by Ron Wright on May 31, 2006 at 03:42 PM in Teaching Law | Permalink | Comments (5) | TrackBack

Baseball and Religion

Thanks to Dan and company for inviting me back for another stint! I’ll jump in with some more serious thoughts once I finish grading my con law exams. But, as I sit here reading students’ views on standing, federalism, executive detention, etc., Keith Olbermann and Dan Patrick on ESPN radio are talking about an interesting situation involving the Colorado Rockies baseball team. Apparently, the team’s owner has adopted an explicit “Christian” identity for the team. I could not find any details in a quick search of ESPN.com and SI.com, but according to Keith and Dan, team employees, including players, are expected to conform to this team identity, although what’s less clear is whether the team expects players or other personnel to embrace the owner’s form of Christianity or religion in general.

Keith and Dan are debating whether an explicit religious team identity is a good or bad thing.

Both seemed to agree that it’s a bad business model if the team in fact would pass, for instance, on the best available closer because he doesn’t adequately embrace Christian values, although it’s not clear the team actually would do that.

Keith and Dan, however, offered some interesting cultural comments. Both seemed to agree, for example, that it would be inappropriate for the Rockies institutionally to say or suggest that “God” in some way is on their side, and Dan reported that the owner in fact has said that God has played some role in the team’s recent success. Keith, however, went further and argued that the explicit adoption of a highly personal religious belief system as a team identity is inherently divisive and exclusive to non-believers, just as if the team had said, “We want only White players.” Is this analogy to racial identity fair? If so, should MLB respond in some way? What if the team’s owner openly declares the team “God’s team” in some way because of the team’s Christian identity? Should MLB attempt to do anything then? Dan, while calling it a “fine line,” wondered whether the team’s Christian identity, if it doesn’t involve actual discrimination against non-Christians, isn’t merely a business ethos statement, that “We expect members of our business to conform to certain standards of conduct that are reflected in this religion.”

I know it’s just baseball, but it’s almost Summer and I thought the issues interesting. I’d also be interested in any further clarification of the Rockies’ official position, if in fact the team has adopted one.

Posted by Brooks Holland on May 31, 2006 at 03:38 PM in Culture, Religion | Permalink | Comments (20) | TrackBack

Tuesday, May 30, 2006

Comments on WaPo Op-Ed

I have gotten a fair bit of e-mail traffic on my recent op-ed in The Washington Post.  Lunatics on both the left and right have written me to complain about different aspects of the article.  Apparently, the mere mention that Bush won the 200o election aligns me with a "right-wing conspiracy" -- and failing to mention that Bush actually did very well in the popular vote and galvanized a relatively high turnout in 2004 renders me a "leftist apologist."  Others had more substantive responses -- and it was rewarding to have so many engaged with my ideas.  I assume this relatively light fare catered to more readers than my most recent academic article (which has achieved a paltry 42 downloads!).

One notable comment on the op-ed comes from the always-interesting Ruchira Paul, who blogs at Accidental Blogger.  You can read her analysis here.  Here's a nugget:

There is something interesting about telephone voting I wish to note here. (I wish I could find the link)  One Swiss canton tried to make it easier for its citizens and arranged for voting by phone from home.  Percentage of votes cast actually went down!

It appears that there are several tangibles and intangibles to why people will or will not do their civic duty.  The most important of course is how high the political stakes are.  During acute financial, national or cultural upheavals voters turn out in large numbers  despite severe obstacles of weather, mobility and time constraints.   When not much is at stake on the political / national scene, the visible reason for voter lethargy  is inconvenience -  time away from work, driving, standing in line, bureaucratic calisthenics etc.  But there are some other less obvious reasons why we participate in the political /civic process - we want to be SEEN by our neighbors and friends as conscientious citizens.  When voting from home via telephone took away the  "look at me" incentive, many did not bother to vote. 

Obviously, American Idol gives folks a more compelling reason to vote than do our political candidates.  Perhaps, instead of multiple presidential debates, we could have at least one singing contest for the primary candidates as well as the final nominees of all parties?

N.B.:  Ruchira has posted some artwork that may be worth a quick look here.

Posted by Ethan Leib on May 30, 2006 at 09:13 PM in Article Spotlight | Permalink | Comments (5) | TrackBack

The Burdens of Parenting

Last week, Glenn Reynolds had this op-ed, "The Parent Trap:  How Safety Fanatics Help Drive Down Birthrates," in the Wall Street Journal.  Discussing (among other things) declining birth rates in developed (and other) countries, Reynolds notes:

Parenting was always hard work, of course. But aside from the economic payoffs, parents used to get a lot of social benefits, too. Yet in recent decades, a collection of parenting "experts" and safety-fascist types have extinguished some of the benefits while raising the costs, to the point where what's amazing isn't that people are having fewer kids, but that people are having kids at all.

He wonders also about the declining "prestige" of having children:

People in the suburbs buy SUVs instead of minivans not because they need the four-wheel-drive capabilities, but because the SUVs lack the minivan's close association with low-prestige activities like parenting, and instead provide the aura of high-prestige activities like whitewater kayaking. Why should kayaking be more prestigious than parenting? Because parenting isn't prestigious in our society. If it were, childless people would drive minivans just to partake of the aura.

In response, Ann Althouse had this post, asks how we can make parenting (in Reynolds's words) more "prestigious."  She writes:  "You can't make it cool to have kids just because we need kids. And the people with the kids aren't helping. Aren't they the ones who do the most to make folks without kids see raising kids as an unattractive proposition?  It's a deep, deep problem, and it's not going to change."

Is this a problem?  And, if it is, what (if anything) can law do?

Posted by Rick Garnett on May 30, 2006 at 03:02 PM in Culture | Permalink | Comments (18) | TrackBack

"Defending Imminence"

One of the liveliest classes in my first-year Criminal Law course is the day (or, are the days) we talk about "imminence" in the context of self-defense.  (In the book I use, the lead case on this subject (Norman) involves horrific facts and the Battered Woman Syndrome.)  So, I will read with interest this new paper, "Defending Imminence:  From Battered Women to Iraq," by Kimberly Kessler Ferzan (Rutgers-Camden): 

The war against Iraq and nonconfrontational killings by battered women are two recent examples of a more general theoretical problem. The underlying question is when may a defender act in self-defense. While some nineteenth century common law cases vested the rights in the defender, arguing that it was unfair to force her to live in fear, contemporary domestic and international law cast the balance decidedly on the side of the aggressor, by forcing the defender to wait until the aggressor’s attack is imminent. The Bush Administration and the battered woman simply ask whether the pendulum swung too far in the aggressor’s favor. Why wait for imminence, if the defender needs to act earlier?

In response to the plight of battered women, many criminal law scholars advocate jettisoning the imminence requirement. They contend that imminence’s role is simply to establish necessity. It thus follows that in those situations where imminence proves to be a poor proxy for necessity, the need to act trumps the imminence requirement. Exporting such reasoning to international law yields the conclusion that America’s war against Iraq could also be justified by a showing of sufficient need.

This Article claims that the significance of the imminence requirement is independent of the needs of the defender. Self-defense is not merely self preferential acting. Rather, self-defense is best understood as a limited right to respond to aggression. Imminence serves as the actus reus for aggression, separating those threats that we may properly defend against from mere inchoate and potential threats. Thus, when one seeks to pull at the thread of imminence, the fabric of self-defense itself unravels.

Any thoughts?

Posted by Rick Garnett on May 30, 2006 at 02:54 PM in Criminal Law | Permalink | Comments (3) | TrackBack

Monday, May 29, 2006

Memorial Day Musings

Different countries "do" public holidays differently. In the United States, government offices are closed on several named holidays, but businesses are not otherwise restricted. In other countries, all businesses are restricted either de jure or de facto.  In Germany, for example, shops must be closed on all public holidays. In Great Britain, "bank holidays are days upon which banks are (or were) shut and therefore (traditionally) no other businesses could operate." (If I am wrong about businesses being closed in either Germany or Britain, please let me know.)

At first glance, the American approach is preferable. Why force businesses to give days off to all employees? Better to deregulate and allow employers and employees to sort out the right amount and scheduling of vacation time. Moreover, public holidays create real costs. Having everyone go on vacation at the same time leads to sudden spikes in demand for recreation and concomitant inefficiencies, as anyone who sits in traffic jams on holiday weekends can tell you. If holidays are efficient despite these costs, then they will happen naturally, without any help from the state. Arguments that people must be forced by the state to take shared time off are extremely paternalistic.

There are some efficiency rationales for mandating public holidays, however. Mostly, these stem from coordination problems. The value of a holiday may depend on what others are doing on that day. If there is no one around to share a Memorial Day barbeque or watch a Veterans' Parade, then the value of that day is diminished. Left to the private sector, it might be hard to coordinate days off to get enough shared days. For extended families or social networks seeking to get together, relying on everyone to find an appropriate day off may be impossible. Therefore, there is at least some rationale for mandated public holidays.

On balance, I favor the American approach over the British/German approach. By having days off for government workers and strong norms for public holidays, America gets the benefit of shared holidays without imposing on most of its citizens.

If anyone has a different view, however, I am happy to hear it.

Posted by Yair Listokin on May 29, 2006 at 10:34 PM in Culture | Permalink | Comments (2) | TrackBack

Sunday, May 28, 2006

Why Tolerate Religion?

Is there a "principled argument" why the "state should tolerate religion as such at all"?  Brian Leiter has posted a new paper, "Why Tolerate Religion?", on SSRN.    Here is the abstract:

Religious toleration has long been the paradigm of the liberal ideal of toleration of group differences, as reflected in both the constitutions of the major Western democracies and in the theoretical literature explaining and justifying these practices. While the historical reasons for the special “pride of place” accorded religious toleration are familiar, what is surprising is that no one has been able to articulate a credible principled argument for tolerating religion qua religion: that is, an argument that would explain why, as a matter of moral or other principle, we ought to accord special legal and moral treatment to religious practices. There are, to be sure, principled arguments for why the state ought to tolerate a plethora of private choices, commitments, and practices of its citizenry, but none of these single out religion for anything like the special treatment it is accorded in, for example, American and Canadian constitutional law. So why tolerate religion? Not because of anything that has to do with it being religion as such - or so this paper argues.

Professor Leiter's paper is provocative and engaging.  (In places, and somewhat to my surprise, it struck me as consonant with John Garvey's "Free Exercise and the Values of Religious Liberty.")  I think there is a lot to the claim (explored and developed by, for example, Steve Smith) that, at the end of the day, arguments for distinctive and special protection for religious freedom -- and, more generally, for the public authority's responsibility to promote and protect the common good, one aspect of which is religious freedom -- will (have to) be "religious" arguments (or, at least, not "liberal" arguments).

Posted by Rick Garnett on May 28, 2006 at 01:10 PM in Religion | Permalink | Comments (2) | TrackBack

Leib and James to help fill your Sunday

Ethan's busy ushering the groom today (congrats Julie and Eddan), so let me take a second to plug Ethan's provocative piece in today's Washington Post Outlook section, entitled Why Not Dial-in Democracy, Too? Here's the opener:

The people have spoken: Taylor Hicks is our newest democratically elected American Idol. Americans cast 63.4 million votes in last week's election -- nearly as many as were cast in the 2002 congressional elections, and more votes than George W. Bush got in 2004. Judging from the level of participation it inspires, "American Idol" isn't just a wildly successful television program -- it's also a successful democracy.  It's not a perfect democracy, of course. When Chris Daughtry was eliminated despite his talent and popularity -- and the heroic pleas on his behalf from the grass-roots "Chrisaders" at http://www.DaughtryGang.com -- many learned the hard way that participatory democracy can produce results that seem terribly unfair, or that give rise to suspicions of rigging.  But the show still inspires more water-cooler conversation than this year's hotly contested House races in Colorado or Connecticut. Moreover, 35 percent of the show's voters believe that casting a vote for a contestant on this juggernaut of a television program counts "more than or as much as" voting in a presidential election, according to a recent survey.

Also worth checking out on this Lazy Sunday is this funny essay by Sarita James, a delightful former student of mine.  The essay appears in the Modern Love column today and it's about the difficulty of cabining parental involvement in spousal selection. 

Posted by Administrators on May 28, 2006 at 10:56 AM in Law and Politics | Permalink | Comments (1) | TrackBack

Saturday, May 27, 2006

Shaming and Violence

I guess this is the right medium in which to bemoan the lack of legal scholarly attention to Dr. James Gilligan’s classic book “Violence.” Written exactly a decade ago, the book argues that violence is a function of shame, and that violence is a central way that people (mostly men) attempt to cure, obliterate, and otherwise compensate for their own experiences of being shamed through physical and psychological violence.

Gilligan is a psychiatrist, Harvard professor, and former director of mental health for the Massachusetts prison system. While medical director of the Bridgewater State Hospital for the criminally insane, he oversaw the treatment of the state’s most extreme, violent inmates. Although sometimes his thesis seems overbroad (I don’t think all criminal behavior can be explained as reaction to shame), he gives a very compelling account of some of the most violent versions. Anyone who has spent time in the criminal system cannot help but be struck by how abused, sad, self-loathing and self-destructive many defendants are, and Gilligan captures this experience quite poetically. In his words:

I have yet to see a serious act of violence that was not provoked by the experience of feeling shamed and humiliated, disrespected and ridiculed, and that did not represent an attempt to prevent or undo this ‘loss of face’ – no matter how severe the punishment, even if it includes death. For we misunderstand these men, at our peril, if we do not realize they mean it literally when they say they would rather kill or mutilate others, be killed or mutilate themselves, than live without pride, dignity and self-respect.

Another reason I like this book is that it highlights an intuitive problem with shaming remedies (see Dan’s recent post), which is that sometimes making angry, abused, disadvantaged people feel ashamed and worthless causes them to, er, misbehave. This is hardly a novel point, and I am not claiming that Gilligan’s work is fatal to the shaming approach – indeed Gilligan himself says that “crime and punishment are reciprocal systems for the symbolic exchange of honor and shame” --  just that Gilligan’s insights into the self-perpetuating cycle of shame and violence could be useful in this context.

Although Gilligan’s book is occasionally cited in law reviews and texts, I don’t think it has been fully appreciated. I’ve thought about trying to write a book review (no law review has ever published one as far as I can tell), but it seems as if the law reviews only want to cover recent books. If someone thinks otherwise, I’d love to know.

Posted by SashaNatapoff on May 27, 2006 at 07:00 PM in Criminal Law | Permalink | Comments (11) | TrackBack

Friday, May 26, 2006

Nagel on Sandel

There was a nice little article by Thomas Nagel in the last issue of the New York Review, reviewing some old essays by Michael Sandel that are being repackaged into a Harvard Press book called "Public Philosophy: Essays on Morality in Politics." It is a very aggressive review of a major figure in political theory. Yet it cannot be denied that Sandel's centrality to the canon is, in large measure, a product of being in the right place at the right time. For far too long, political theory's main cleavage was between the "liberal individualists" and the "communitarians" -- with Rawls being the main expositor of liberalism and Sandel representing the communitarians. Over time, even Sandel realized that Rawls won that debate (without much sullying himself in the debates at all!) -- and Sandel swore off communitarianism for some form of virtue republicanism. His enemy, however, remained liberalism -- though he seems not to have learned the important lesson from liberalism's last victory: you can't beat liberalism by caricaturing it to make your point. Nagel explores how Sandel continues to argue against political liberalism.

In any case, here's a nice nugget from the review:

Unfortunately, [Sandel's] understanding of liberal political theory is defective, and his desciption of the principles and arguments of those he wants to criticize is persistently inaccurate. . . . Caricaturing the opposition can be a polemical strategy, but in Sandel's case I believe it is due primarily to philosophical weakness exacerbated by the difficulty of understanding a view that he thinks is wrong.

Posted by Ethan Leib on May 26, 2006 at 04:11 PM in Article Spotlight | Permalink | Comments (0) | TrackBack

Presidential Politics & "Fuzzy Math" (Chapter 82): Divorce?

With the growing recognition of the need for statistical literacy among lawyers, law students, and law professors, I feel like we should add another group: politicians.

There are three basic prerequisites that almost guarantee ... that a child won't have a day of poverty. If a person gets married and remains married in a monogamous relationship for life, finishes high school, gets a job, and keeps a job for at least five years, there's a 91 percent likelihood that a ... child in that family will not have poverty.

This from Arkansas Governor (and probable 2008 presidential candidate) Mike Huckabee.

Gov. Huckabee is be venturing far, far beyond what the stats actually prove when he says that because married high school grads (who keep their marriages and jobs intact) rarely find their kids in poverty, those three factors -- marriage, high school, and employment -- "virtually guarantee" non-poverty.  I think any sociologist worth his or her salt would tell you that the correlation between poverty and those other social indicators has a lot to do with other core factors.  Liberals would point to the quality of the local educational system and local job opportunities; conservative would point to pre-existing family structure (i.e., what kind of family you grew up in) and personal behavi0r (e.g., impulse control and violent tendencies); and both side surely are right.

All Huckabee is spotting is that poverty correlates with employment, high school, and marriage.  Come to think of it, isn't some of that pretty darned obvious?  If you have more education, you are less likely to be in poverty; and even more deeply in the "duh" department, if you consistently hold a job, you are less likely to be in poverty.  No word from the Governor as to whether he's also sussed out that "having a big bank account" is a fourth factor that "virtually guarantees" you won't be in poverty.

Yet Huckabee is using his "analysis" to make a serious point about no-fault devorce laws, which brings me to my second qualm about Huckabee Math:

[N]o-fault divorce became the vogue in the early '60s. When states first introduced it, then everybody got on the bandwagon, and the result is now one in two marriages virtually ends in divorce in the country.

Calling all cars: family law folk, three questions:

(1) Has anyone studied whether no-fault divorce has caused an increase in divorce?

(2) Is it really true that "everybody got on the bandwagon"? I'm pretty sure New York, for example, doesn't have no-fault divorce.

(3) Has anyone seriously studied whether the increase in divorce has been, at least in part, a good thing? If we go back to Huckabee's good ol' days (e.g., he said, "The country was better off with Leave it to Beaver than Beavis and Butthead. We were better off when The Gideons gave Bibles to the fifth graders than when school nurses gave condoms to the sixth graders. "), weren't there a lot of couples staying together despite serious spousal abuse that, today, would've resulted in a divorce? Isn't it a good thing that some marriages end in divorce?

Posted by Scott on May 26, 2006 at 10:33 AM in Current Affairs | Permalink | Comments (7) | TrackBack

Why Do We Care? -- Reflections on Dead Judges Voting

Over at How Appealing (see here, here, here, and here), and on the ConLawProfs listserve, much virtual ink has been spilled this week, including some by me, on whether/when dead judges get to vote, given the late (and great) Judge Edward Becker's dispositive vote with the majority in this week's Third Circuit ministerial exception case, Petruska v. Gannon University. [To its credit, the conversation on ConLawProfs has recently segued from this discussion into a series of remembrances of Judge Becker, who deserves far more attention for his career accomplishments and his munificence than his vote in the case.]

Leaving aside the obvious chance to plug an earlier debate along similar lines with respect to "Circuit Justice Roberts," the wrangling over the minutiae may reasonably lead many to ask the obvious question -- who cares? That is to say, why spend so much time worrying about whether the relevant time period for a judge to cast a vote is solely the day a decision is filed, as compared to some previous point at which the panel's views became solidified? 

In many ways, I think the reason why lawyers, especially academic ones, get so into questions like this is because they go to the very core of our system, but gently at that. These are legal issues divorced, for the most part, from politics, partisanship, ideology, or, realistically, significant real-world consequences (if we assume that "fixing" the problem wouldn't alter the result), and the lesson from this week, methinks, is that that can be a good thing sometimes. Ours is a system of rules, from which the "rule of law" derives, and even the most non-substantive of these rules can raise fascinating questions about our approach to legal analysis, legal interpretation, and, indeed, legal methodology.

That is to say, the debate over Petruska has, for the most part, taken place on a level wholly divorced from the substantive questions presented in the case -- the scope and availability of the ministerial exception to Title VII, on which the decision arguably creates a circuit split (the Ninth Circuit case, as I've noted, produced one of the best puns I've ever seen in a judicial opinion, see pg. 15 of the PDF).

For sure, this isn't always true with "technicalities" -- it would be wholly spurious to claim that all debates (or even most debates) over legal technicalities are divorced from politics. And I'm sure that there are lots of better things I could've been doing this week than reading about the finer points of 28 U.S.C. [sec.] 46, digging up Learned Hand quotes ("quote Learned; follow Gus"), and fighting over what the word "determined" means in the context of the statute.

But, and I don't think I'm alone in saying this, these kinds of fights are why I like my job...

Posted by Steve Vladeck on May 26, 2006 at 09:07 AM in Steve Vladeck | Permalink | Comments (1) | TrackBack

Thursday, May 25, 2006

Does the Market Like CEO Convictions?

Its been over a week since I last looked at the stock market reaction to important legal news, so I can't resist another go around. Today's topic-- how does the market respond to the conviction, or lack thereof of CEOs for allegedly fraudulent behavior. Presumably, any conviction, or failure to convict, sends a signal to executives and the stock market about the likelihood of winding up in jail for certain behavior. In theory, convictions of CEOs for bad behavior could raise or lower stock prices. Prices of stocks should go up if the increase in probability of conviction for bad behavior lowers the risk of faulty and inefficient bookkeeping or other scams. The price of stocks would fall, however, if  fear of prison deterred executives from taking ex-ante efficient risks that might look criminal ex-post. And of course, higher or lower risk of prison for executives might also be irrelevant, or impossible to disetangle from the everthing else that moves markets.   

Today, Jeff Skilling and Kenneth Lay were convicted at around noon-- I'm betting a little before noon, though I can't be sure. The S &P 500 was up 1.14% for the day. Any number of things could be causing this increase. Between 11:00 and 1:00 today, a window that allows us to focus more directly on the Enron effect, the S&P was up .32%.

We can't draw any conclusions from one event, so lets look at another. When Richard Scrushy was acquitted on June 28, 2005, the market received the opposite type of signal, that the "I didn't know" defense by CEOs might work in some cases.  Contrary to the thesis that higher risk of CEO conviction is good for value, however, the S&P 500 actually rose .8% on the day of the acquittal.

With only two data points, unobservables can easily swamp any effect, so its premature to make any conclusions such as "the market doesn't care". To make this study complete, we should get many more examples of convictions and acquittals and examine the market consequences on average, which would allow us to get much more precise and statistically significant results. This mini-study, however, uncovers no consistent stock market response to news of CEO convictions and acquittals. Oh well.

Posted by Yair Listokin on May 25, 2006 at 08:55 PM in Corporate | Permalink | Comments (0) | TrackBack

Unanimity on the Court

Here is a webcast of the Chief Justice Roberts's recent graduation speech at Georgetown, in which he said -- among other things -- "[i]f it is not necessary to decide more to a case, then in my view it is necessary not to decide more to a case[.] . . .  Division should not be artificially suppressed, but the rule of law benefits from a broader agreement. The broader the agreement among the justices, the more likely it is a decision on the narrowest possible grounds."

In a FindLaw column, Edward Lazarus asks if "Chief Justice Roberts is correct that unanimous opinions are inherently desirable," and contends that "split decisions and passionate dissents are sometimes better."  What's more,

In the overwhelming majority of cases, the real issue is not unanimity or lack thereof. Instead, the Court runs into trouble either when it so fractured that its decisions leave the law confused and unsettled, or when it is so narrowly divided and politically polarized that the internal divisions erode the Court's status and authority.

I wonder -- Are there really any non-aesthetic reasons for caring that much about whether opinions are unanimous, or 6-3?  I suppose we might think that unanimous opinions are better not in themselves, but because they correlate with, or indicate, "minimalist" decisions and rationales, which are better, even if they are handed down in 5-4 opinions. 

On the other hand, the title of Cass Sunstein's op-ed in today's Los Angeles Times is "9-0 is better than 5-4."  In the piece, Sunstein endorses the view -- which he associates with Justices O'Connor, Frankfurter, and now Roberts -- that narrow rulings (which are more likely to be unanimous, and vice versa) exhibit "humility" and "help to promote a key goal of societies that are both diverse and free: to make agreement possible where agreement is necessary, while also making agreement unnecessary where agreement is not possible." 

It has always seemed to me, though, that the O'Connor / "one case at a time" / minimalist approach is not particularly humble, but instead reflects a desire to avoid ever relinquishing the Court's final say over the many issues that do and always will divide "societies that are both diverse and free."  And, the Scalia-type criticisms of this approach might proceed less from a preference for "ambitious" (Sunstein's word) rulings, than from a desire for decisions and rationales that are, perhaps, more humble, precisely in that they do not presume that the every new factual situation should be regarded as presenting a new constitutional question that the Court is -- supremely -- able and authorized to resolve. 

Sunstein is, it seems to me, entirely right to hold out, as a worthy goal for the Court, "to avoid taking a stand on the most controversial questions and [thereby to] show[] respect for people with reasonable competing views."  I guess it is not clear to me that O'Connor's approach really does this.  (As I have suggested elsewhere, though, Chief Justice Rehnquist's might have.)

Posted by Rick Garnett on May 25, 2006 at 02:42 PM in Constitutional thoughts | Permalink | Comments (4) | TrackBack

Gementera Goes To Prison

In part because of my academic interest in alternative sanctions, and in part because of my  representation in the Ninth Circuit of a bunch of prawfs worried about shaming punishments, I've blogged a bunch of times before about the Gementera case. 

Well, I have more sad news to report.  Notwithstanding Gementera's earlier shaming punishment -- in which he had to hold a sign for eight hours outside a post office that said "I stole mail. This is my punishment!" -- the defendant Shawn Gementera has now been sent to prison for violating his supervised conditions of release: by engaging in mail-related theft again.

Law.com has the story here.  (Hat tip to patent lawyer extraordinaire Ted Chandler.)   

Lest I be chastized by Greg Yair or the good folks at the Empirical Legal Studies Blog, I don't want to make too many generalizations from this one data point.  But those who have been pushing the specific deterrence angle regarding shaming punishments are going to have a tougher time pushing their case in the public sphere now that the most famous recent shaming punishment has appeared to have had no effect whatsoever on the offender.   Whether that's true for general deterrence, well, we'll have to wait until Jon Klick or someone from ELS devises some nifty experiment.  Anyone keen to assess the prevalence of mail theft pre- and post-February 2006 in the Bay Area?

Posted by Administrators on May 25, 2006 at 02:15 PM in Criminal Law, Dan Markel | Permalink | Comments (5) | TrackBack

Goodbye for now

Just a quick post to say goodbye to all you Prawfsblawg readers, since this guest stint is up.  What with exams, grading & moving across the country (to start teaching at Willamette), I've posted less than I planned to--best laid plans, and all that.   I will continue to blog at the Legal Ethics Forum, if any of you have a hankering for reasoned ethical discourse.

In any case, I hope everyone has a relaxing and productive summer (hopefully not too contradictory in spirit).  For those of you planning to attend the New Teachers Conference this June, look me up!

Posted by Laura I Appleman on May 25, 2006 at 12:27 PM in Blogging | Permalink | Comments (0) | TrackBack

Wednesday, May 24, 2006

Digestible Numbers from Law Profs

A couple of days ago (that's a different eon in blog-time), Yair asked whether statistics should be a required course for law students. My quick response is that required statistics courses aren't feasible at law schools until the elective curriculum in numbers-based learning proves itself. Show me a law school that has a half-dozen courses with some statistics component, and I'll show you a law school that's ready to start talking about a required course.

But what about the rest of the legal world? How can law schools encourage more numeracy (and not just literacy) among the lawyers now in practice? Do you think that lawyers who've tasted the real life needs of legal practice have more interest in statistical learning? Possibly law schools and providers of CLE courses should be offering brief "Statistics for Practicing Lawyers" seminars.

Some law professors might also take on the job of providing useful, digestible numbers for practicing lawyers. We could become their guides through the massive data bases that lie around, unused by lawyers who don't have the time to appreciate what they're seeing. Perhaps most law professors, along with producing a law review article every so often, could also generate a periodic report on interesting and useful statistics from their specialty field. The aim would be to give lawyers some insight into the landscape, producing numbers that show a pattern that otherwise remains hidden.

For an example of this sort of thing, here's an SSRN link to my recent effort to create a set of useful numbers for practicing lawyers. In this case, the numbers involve the charge reductions that prosecutors make, reductions that lead to predictable drops in sentences. A criminal lawyer should know the statistical lay of the land before starting plea negotiations, no?

Posted by Ron Wright on May 24, 2006 at 10:33 AM in Life of Law Schools | Permalink | Comments (9) | TrackBack

Tuesday, May 23, 2006

Upcoming Labor/Employment Conference (OR: The Power of Guest-Blogging!)

Less than two weeks ago, I wrote a whiny post complaining about the lack of labor/employment law academic conferences, expressing wonder at the far greater conference offerings in certain other fields, and wondering why such a disparity.  Comments by two other profs, Paul Secunda (of the WorkplaceProf Blog) and Joseph Slater (of recent Prawfs guest-blogging fame), generated follow-up emails among the three of us; and in less than 48 hours, we were planning a conference!  I'm just old enough -- or maybe just luddite enough -- to be amazed at what a powerful tool blogs and "the internets" can be in bringing people together for meaningful cooperative efforts like this.  Our conference now is officially "on," and we have the official conference website to prove it.  Here's a short version of the announcement:

Marquette University Law School is proud to announce that it will host the First Annual Colloquium on Current Scholarship in Labor and Employment Law on Friday, October 27, 2006.

The Colloquium offers an opportunity for labor and employment law scholars from around the country to present their works in progress or recent scholarship, to get feedback from their colleagues, and to have a chance to meet and interact with those who are also teaching and researching in the labor and employment law area. Although all participants are encouraged to present their scholarship, one need not present in order to attend.

The colloquium will begin at 8 a.m. on Friday, October 27 and end with an evening reception and dinner; attendance (including all meals and refreshments) is free. There will also be an informal get-together Thursday evening.

I hope that any of you with an interest in labor/employment law or related fields (e.g., civil rights, gender, ADR or litigation of discrimination claims, etc.) consider coming.  Among the fringe benefits of visiting Milwaukee:  (1) Free tours (including free beer samples) at the Miller brewery!  (2) Be at ground zero of the excitement of the Brewers' first World Series appearance since 1982 (hey, you never know -- they're actually playing .500 ball right now)!  (3) Mid-autumn is an ideal time to visit the upper midwest, because by then, all the warm-weather destinations are just too crowded. (Cf. Yogi Berra: "That restaurant is too crowded -- nobody goes there anymore.")

Posted by Scott on May 23, 2006 at 11:09 PM in Blogging, Legal Theory, Life of Law Schools | Permalink | Comments (7) | TrackBack

Citizen Representation and the American Jury

I have just posted my newest draft paper to SSRN.  It is co-authored with David L. Ponet, a fellow political theorist and is available for download here.  Here's the abstract:

Participatory and deliberative democrats are increasingly relying on groups of “lay” citizens to have a direct hand in policy formation and consultation. However, these theorists have not adequately addressed how these “citizen representatives” should be selected and how their activities can be truly deemed “representative”. We find these lacunae unsurprising in light of continued confusion in the representation literature about the relationship between democracy and representation – and the continued lack of effort to bridge normative theories of political representation with sensitivity to real institutional practices of representation. Accordingly, we look at a particular institutional manifestation of democratic representation – the American jury system –and tease out a theory of “citizen representation” that highlights six central desiderata: deliberation, impartiality, cross-sectionality, civic responsibility, legitimacy, and indirect accountability. An analogy that proves rich upon examination, we find that the jury’s implicit theory of citizen representation has much to recommend to proposals and practices of citizen representation in other institutional settings.

For now, we are expecting to publish this article in a political science journal rather than a law review.  All comments are welcome.  My previous work on the jury from this year is available here and here.

Posted by Ethan Leib on May 23, 2006 at 08:24 PM in Article Spotlight | Permalink | Comments (0) | TrackBack

The Symbiotic Relationship between Blawgs and Law Schools

It's not quite the ChicawgoBlawgo, but I'm pleased to see that the forward thinking University of Illinois College of Law has now created this page, on which you can view an aggregation of the blogs from the Larry's (Solum and Ribstein) as well as Christine and Linda.  Great idea, one that I haven't seen at other school's websites (yet?).  You can also access Illinois' special lectures here.  This website is a gem: it not only spotlights intellectual activity at the school, it also transmits that knowledge-building elsewhere.  At least in this sense, Illinois is making law porn safe to enjoy again...

Posted by Administrators on May 23, 2006 at 03:43 PM in Blogging | Permalink | Comments (1) | TrackBack

Virtues and Verdicts: Sunstein on Dworkin

In the May 22 issue of The New Republic, Cass Sunstein has this review ("Virtue and Verdicts") of Ronald Dworkin's "Justice in Robes".  Sunstein sets the stage with this:

For over three decades, Ronald Dworkin has been the most influential and illuminating analyst of the view that judges can or should merely "follow the law." In this collection of recent essays, Dworkin explores the relationship between law and morality, elaborating his previous arguments and replying to a number of prominent objections. Dworkin agrees that judges generally must be faithful to existing legal materials, but he insists that they are not merely "following" something. The law is often unclear. Dworkin contends that when resolving real disputes, judges must select the principle that puts previous decisions in their most attractive light. For this reason, the task of interpretation requires judges to think seriously about what morality requires, and they might well end up moving the law in dramatic and novel directions.

After a helpful summary of the book's claims and context, Sunstein -- drawing on his own defense of "minimalism" -- writes:

[E]ven if we reject originalism, it does not follow that judges should adopt and impose large-scale moral principles of their own (and call what they are doing "fidelity"!). Suppose that we insist that when judges strike down legislation because of their own moral judgments, they might well err. In American history, it is easy to find examples. . . .

. . .  Puzzlingly, Dworkin does not come to terms with the risk of judicial error in the moral domain. . . .

Dworkin's . . . claim is that the Supreme Court should adopt an approach that calls on the justices to make large-scale judgments about the meaning of our highest ideals. I think that the Court should, most of the time, refuse to assume such a role. It should refuse to do so because fallible judges ought to avoid engaging, in particular cases, with the most fundamental problems in morality and politics. No theory of interpretation can avoid moral and political controversy, but it is possible to adopt, on moral and political grounds, a theory of interpretation that asks judges to decline to deploy their own moral and political judgments as weapons against the democratic process.

Posted by Rick Garnett on May 23, 2006 at 09:58 AM in Constitutional thoughts | Permalink | Comments (0) | TrackBack

Monday, May 22, 2006

Bill Moyers: Pass the Bread

I participated as a hooder in our law school’s commencement last week. I was truly touched to see my students’ delight and joy and to receive so many hugs and words of thanks while hooding the class that started law school as I began my own journey on the tenure-track. I didn’t get a chance to say much on the stage besides “congratulations,” but if I could I might have said something along the lines of Bill Moyers’ recent baccalaureate address ("Pass the Bread") at Hamilton College: 

All of us have to choose sides on this journey. But the question is not so much who we are going to fight against as it is which side of our own nature will we nurture: The side that can grow weary and even cynical and believe that everything is futile, or the side that for all the vulgarity, brutality, and cruelty, yearns to affirm, connect and signify. Albert Camus got it right: There is beauty in the world as well as humiliation, "And we have to strive, hard as it is, not to be unfaithful...in the presence of one or the other.”


That's really what brings me here this afternoon. I did put myself in your place, and asked what I'd want a stranger from another generation to tell me if I had to sit through his speech. Well, I'd want to hear the truth: The truth is, life's a tough act, the world's a hard place, and along the way you will meet a fair share of fools, knaves and clowns--even act the fool yourself from time to time when your guard is down or you've had too much wine. I'd like to be told that I will experience separation, loss and betrayal, that I'll wonder at times where have all the flowers gone.  I would want to be told that while life includes a lot of luck, life is more than luck. It is sacrifice, study, and work; appointments kept, deadlines met, promises honored. I'd like to be told that it's okay to love your country right or wrong, but it's not right to be silent when your country is wrong.

Posted by Marcy Peek on May 22, 2006 at 10:38 PM in Current Affairs | Permalink | Comments (0) | TrackBack

The Wrath of Phone Customers

On a lawyer listserv I frequent, one lawyer posted that she was thinking of switching her cell phone provider because that company had cooperated with the NSA program to track millions of phone calls.  Another lawyer (who gave me permission to post the below correspondence)posted that she actually asked customer service if her records had been provided to any gov't agency -- a nice attempt to use customer service for "discovery" purposes! -- and got quite the double-speaky response (emphases added by me):

I emailed customer service with the following Q: Please provide me with any information about my accounts, both residential phone and internet, that you have provided to any agency of the federal government. This is the answer:

Greetings Sally Stix,

Thank you for your recent email.

I apologize for any inconvenience this matter may have caused you.
Rest assured, we take customer privacy very seriously.  Furthermore, AT&T follows all laws with respect to assistance provided to government agencies.  However, we're not in a position to comment on matters of national security.

Thank you for choosing the new AT&T - the culmination of AT&T's passion to invent and SBC's drive to deliver. We appreciate your business and continued loyalty. Check out the new AT&T at www.att.com.

Customer Care Center
Monday-Friday 7:00 AM-9PM
Saturday 8AM-5PM

You may receive a survey asking if you are very satisfied with the service I provided to you today. If you are not, please contact me so I can ensure you are very satisfied with the service I have provided.


Your AT&T Customer Service Representative
I could go on, but I think I'll let that text (and my strategic boldfacing) do the talkin'....
Incidentally, those thinking of suing their phone companies might want to retain the free legal services of Orin Kerr's blog!

Posted by Scott on May 22, 2006 at 06:22 PM in Culture, Current Affairs, Law and Politics | Permalink | Comments (1) | TrackBack

Con Law Fun

In case you thought taking Con Law exams was fun when you were in law school, perhaps you are interested in testing yourself with the first question from my Con Law I exam this Spring:

Finding and documenting that that there is tremendous discrimination against state employees who need to take vacations for personal and family reasons, Congress enacts the Vacation Accommodation for State Employees (“VASE”) Act in 2006, a labor regulation aimed at state and federal employers: its main provisions in Title I require that states and federal employers provide a minimum amount of vacation time (4 weeks per year) for eligible employees.  Congress does not impose a similar restraint on private employers (although private employers are, of course, subject to many federal employment regulations).  Title II confers a federal cause of action for individuals against states and the United States when state employers fail to comply with VASE’s Title I provisions.  Just prior to the passage of VASE, the United States entered and ratified a treaty with the European Union promising to make an international commitment to “improve labor conditions within our governmental structures.”  Assess the constitutionality of VASE according to current Supreme Court doctrine.  (30 points)

The second question was modeled on Hamdan -- and I was more or less hoping to get something like this in response.  The final question was theoretical and it asked the students to assess "representation-reinforcement" as a theory of judicial review or discuss the role of legislative motive in constitutional deicisonmaking.

I was pretty pleased with how they did.

Posted by Ethan Leib on May 22, 2006 at 02:43 PM in Constitutional thoughts | Permalink | Comments (14) | TrackBack

Is the Tenure Article Extinct?

In the past, untenured law professors were expected to be complete their tenure applications with the publication of an article.  This article -- the "tenure" article -- was expected to be the candidate's best and brightest effort, a piece of real significance.  At some schools, and during some time periods, the tenure piece was the only article a law prof was expected to complete before tenure.  But even when the junior professor wrote more than one, the tenure piece was expected to stand out as the culmination of the prof's pre-tenure research.

One critical feature of the tenure article was its length.  The piece was expected to demonstrate that the author had digested and understood all of the relevant literature in the field before moving on to suggest a new paradigm or incorporate a new insight.  In many ways, the literature review was the most important part of the article, for it demonstrated that the professor had a grasp of the critical issues in the field.  (Perhaps it served as a form of "comps" for non-Ph.D. profs.)  As a result of the extensive background discussion, these articles could be quite lengthy -- 80, 90, 100 or more law review pages.

Does the tenure article still exist?  I haven't seen much discussion of the "tenure article" on the web.  But Judge Posner references the tenure article here -- he discusses the possibility that a school's law review might "publish the 'tenure article' of a junior professor—not because it was a good article but because he was a popular teacher or the editors felt sorry for him and didn't want to see him fired."  The Alabama Law review notes that "[m]any scholars have published their first article or tenure article in the review."

In talking with other junior professors, the topic of the "tenure article" has only rarely come up.  In fact, I think the notion may be fading into history.  Here are perhaps some reasons why.

  • Increases in the Number of Expected Articles.  Many law schools have revised their tenure standards, either de jure or de facto, from one article up to 3, 4, 5 or 6 articles.  This post by Brian Leiter, along with the comments, describes the trend.  As the number of articles increases, the importance of any one of those articles decreases.  The tenure committee must look at the overall body of work, rather than the brilliance of a particular piece.  For junior faculty, the need to pour one's scholarly resources into one piece also diminishes -- and this decreases the risk inherent in putting all of your eggs in one basket.  In addition, it's easier to publish six forty-page articles than it is to publish six eighty-page articles.
  • Law Review Article Limits.  This post from the Emory law library provides the basics -- no articles over 35,000 words, and preferences for articles less than 30,000, 25,000, or 20,000 words.  These lengths are much shorter than the typical tenure piece.  As very responsive submitters, junior faculty have been keenly aware of these changes and, I would expect, have adapted accordingly.  Interestingly, however, these changes were not effectuated by tenure committees themselves -- they were put in place by law student editors.  As Micah Schwartzman discussed here, the article lengths would have dropped if tenure committees changed what they were looking for.  The change in law review policies seems to have accomplished the same thing, although by very different institutional players.
  • Increased Specialization.  One advantage of the longer law review article was its accessibility.  By providing all of the background necessary to situate the piece, law professors of all stripes could read the article and judge the quality for themselves.  As law becomes more interdisciplinary and specialized, however, the notion that all professors have an equal ability to judge a particular article's scholarly quality is diminishing.  If a junior scholar is choosing between accessibility and scholarly insight, as described by Victor Fleischer here, the choice these days is relatively easy.

So my questions for folks are these:  Is the tenure piece on its way to extinction?  Or are tenure committees still expecting the equivalent of a tenure piece?  If so, have their expectations changed along with the law review word limits and the increase in specialization?

Posted by Matt Bodie on May 22, 2006 at 09:01 AM in Life of Law Schools | Permalink | Comments (3) | TrackBack

Why Statistics Should be Mandatory for Law Students

I think statistics should be a mandatory class for law students. Why? Because there are entire fields of law that are nearly impossible to fully grasp without a basic knowledge of statistics. To name a few, I would put employment discrimination, products liability, and much of torts and evidence in this category. In addition, statistical evidence or thinking plays (or at least should play) some roll in almost every area of law.  The point is not to enable lawyers to produce competent statistical evidence, but rather to allow lawyers to be educated consumers of statistics.

I also think that making statistics mandatory would help address another problem I see with law-- the relative absence of statistical evidence in many cases where it would be useful. To use but one example that I've seen repeatedly while clerking, courts are often called upon to determine the constitutionality of profiles used by law enforcement officers to target certain individuals for extra scrutiny. Similar cases come up again and again, and yet neither the government nor defense attorneys ever present evidence of the relative accuracy of a given profile. There are probably lots of reasons why this is true, but I think one cause is that lawyers and judges untrained in statistics don't demand or even seek out statistical evidence because they are at a disadvantage while evaluating it. I believe that a bar more adept in statistics would lead to better outcomes in many cases because more sophisticated and objective evidence could be used. 

I don't doubt that mandatory statistics wouldn't be popular amongst law students. But part of this stems from math phobia, which should not be encouraged given the inevitability of statistical evidence in the professional life of lawyers. Statistics is a core skill for lawyers, and law schools should be teaching it, even if its rather far afield from the traditional curriculum.

Another alternative, of course, is to make a course in statistics a prerequisite for law school. This would adress all the concerns I have raised without requiring law schools to offer courses outside their core competencies.   In many ways this would be preferable, but I can understand why law schools, which currently have no course prerequisites, would be hesitant to open that pandora's box. 

Posted by Yair Listokin on May 22, 2006 at 12:08 AM in Life of Law Schools | Permalink | Comments (16) | TrackBack

Friday, May 19, 2006

Judicial independence: "Five Simple Rules"

What did others think of Dahlia Lithwick's recent Slate essay, "Justice Sandy:  Five Simple Rules for Discussing Judicial Independence"?  Lithwick is, to say the least, enthusiastic about Justice O'Connor's recent remarks, at George Washington University and elsewhere, criticizing courts' critics and defending "judicial independence."   Lithwick writes, "O'Connor had me at hello. I have been railing against the sneering, partisan political attacks on the judiciary for a long time, and I'm delighted that she's ready to unload on the cretins who have been taking a brickbat to judges since the Terry Schiavo mess."  Lithwick ends with this:

. . .  O'Connor is the best pinup girl around for judicial independence. She is neither secretive nor elitist; she's plain-speaking, tough-minded, and open. She is, in sum, the exact opposite of the stereotype that the judge-bashers like to flay: the snobby, reclusive know-it-all. And that is precisely why Sandra Day O'Connor will turn out to be the secret stealth bomber in this rhetorical battle over judicial independence. She sits up there with her white hair and her blue suit and her home truths and she looks like precisely the sort of judge you'd want to be deciding matters. If O'Connor decides to hold a telethon, I'm signing up to sing.

I like to think I'm as big a fan of "judicial independence", and civility in public discourse, as anyone (though I am not sure what the "sort of judge [I'd] want to be deciding matters" looks like).  I agree with Lithwick, actually, that the post-Schiavo criticism of the federal judges who left her case alone was quite misplaced and unedifying.  That said, I'm not sure what, exactly, it is that Lithwick (and Justice O'Connor) are endorsing, and criticizing.  It cannot be right -- can it? -- that to contend (or, I would say, to observe) that the Supreme Court often gets it wrong, on things that really matter, and displays excessive self-confidence and ambition, is to engage in "sneering, partisan political attacks on the judiciary."  Does Lithwick think that harsh criticism of, say, the commandeering and sovereign-immunity decisions constitutes a "sneering" attack on judicial independence?  I guess I'm trying to find the distinction, for Lithwick (and, for that matter, for Justice O'Connor) between "judicial independence", on the one hand, and "judicial immunity from criticism", on the other.

Posted by Rick Garnett on May 19, 2006 at 04:57 PM in Constitutional thoughts | Permalink | Comments (4) | TrackBack

Killing in Good Conscience

Here is a paper that might be interest, "Killing in Good Conscience:  Comments on Sunstein's and Vermeule's Lesser Evil Argument for Capital Punishment and Other Human Rights Violations":

In a recent article, Cass Sunstein and Adrian Vermeule argue that capital punishment is morally required if it will deter significantly more killings than it inflicts. They claim that the state’s duty is to minimize murders, and that recent deterrence research shows that state executions, even if deemed murders themselves, can do so. If these findings are true, they argue, the state is morally obligated to undertake such “life-life tradeoffs.”

The logic of Sunstein and Vermeule’s argument justifies not only state executions, but any state-perpetrated injustice that promises to reduce the incidence of similar injustices overall. Recently such lesser evil arguments have been invoked to justify state torture, detention without trial, and warrantless wiretapping. In this article, I identify problems that are common to all of these arguments. My aim is to demonstrate that, however valid the lesser evil approach may be in some domains, it fails when invoked to defend state violations of the right to life and other fundamental human rights.

The paper is responding to this piece, "Is Capital Punishment Morally Required?  The Relevance of Life-Life Trade-offs":

Recent evidence suggests that capital punishment may have a significant deterrent effect, preventing as many as eighteen or more murders for each execution. This evidence greatly unsettles moral objections to the death penalty, because it suggests that a refusal to impose that penalty condemns numerous innocent people to death. Capital punishment thus presents a life-life tradeoff, and a serious commitment to the sanctity of human life may well compel, rather than forbid, that form of punishment. Moral objections to the death penalty frequently depend on a distinction between acts and omissions, but that distinction is misleading in this context, because government is a special kind of moral agent. The familiar problems with capital punishment – potential error, irreversibility, arbitrariness, and racial skew – do not argue in favor of abolition, because the world of homicide suffers from those same problems in even more acute form. The widespread failure to appreciate the life-life tradeoffs involved in capital punishment may depend on cognitive processes that fail to treat “statistical lives” with the seriousness that they deserve.

Here, thanks to Doug Berman, is a post about the Sunstein / Vermuele paper, with links to lots of comments and responses.  And, here is Dan Markel's long post on the paper, from about a year ago.  Light reading for a Friday in spring . . .

Posted by Rick Garnett on May 19, 2006 at 03:52 PM in Criminal Law | Permalink | Comments (3) | TrackBack

Was Your Last Year of College Worth $12 Million? The Law & Economics of Life Choices

In spring 2005, Matt Leinart was on top of the world.  He was quarterback of the USC football team, the undefeated national champions.  He had won the Heisman trophy.  He was the consensus #1 pick in the NFL draft.  And he was hanging out with Nick Lachey and Will Ferrell.

This year, Leinart is hanging out with Paris Hilton.  But his team's undefeated streak came to an end in a terrifically contested national championship game.  Although the teams were evenly matched, Leinart was outplayed by his counterpart, Vince Young, who put on a masterful performance.  Leinart was no longer even the best person on his team.  Reggie Bush, the flash-fast running back, instead became the consensus #1 draft pick.  On draft day, Leinart slipped to number 10, being chosen by the lowly Arizona Cardinals.

Leinart could have entered the NFL draft in 2005 -- in fact, he could have still graduated.  (The only course Leinart took this year was ballroom dancing.)  In all likelihood, he would have been chosen number one by the San Francisco 49ers.  The difference between being chosen first last year and tenth this year is roughly $12 million.

So my question is this: Leinart gave up $12 million for an extra year of college and a chance to make history by winning another national title.  The title didn't work out.  So was his choice the wrong one?

I'm interested in your thoughts.  By almost any monetary metric, Leinart's choice was an abject failure.  He lost $12 million in salary.  He likely lost some percentage of his endorsement value.  He lost the glamour of being the number one pick.  It's hard to come up with any system of valuation that would endorse his choice, even if his team had won the championship this year.

But there are some things that cannot be easily assigned a monetary value.  How much was it worth to stay with his teammates another year?  How much was it worth to strive for history?  How much was it worth to be the BMOC, hanging out and taking ballroom dancing?  I have to think that there are those who might still endorse his choice today, despite the championship loss.  After all, there's no going back to college once you leave -- except, perhaps, in the movies.

As a contrast, I came across this perspective on the value of human life.  As the article notes, "Sentimentality will sometimes cause us to overvalue the worth of an individual human life.  But the numbers don't lie."

Posted by Matt Bodie on May 19, 2006 at 12:16 AM in Culture | Permalink | Comments (8) | TrackBack

Thursday, May 18, 2006

Q: Who's The Most Insufferable Person In The World?


A:  New York Times Movie Reviewer A.O. Scott

The excerpt below is from the review of Poseidon by A.O. Scott, the New York Times's main movie reviewer (no link provided because he doesn't deserve it):

IT'S hard to think of a big-budget Hollywood picture with less reason for existing than "Poseidon," Wolfgang Petersen's remake of "The Poseidon Adventure," Ronald Neame's much-derided, much-beloved 1972 disaster-kitsch classic based on a Paul Gallico novel. Well, maybe "Mission: Impossible III." And, for that matter, "RV," "Failure to Launch," "Rumor Has it," "The Pink Panther," "Bewitched," "The Dukes of Hazzard," and ... you know what? Just forget I said anything.

Now, my open letter in response:

A.O. Scott

The New York Times (No Address Needed Because Everyone Knows Where You Are Because You're Really Important)

Dear A.O.:

        OK, I get it: you don't like any movies other than indie and foreign flicks like the one about The Girl Who Was Sad Because Her Village Burned Down In A Brush Fire, which won second prize at the Snooty-Toot-Toot Film Festival hosted by Robert DeNiro and Sean Penn.  Of course, at times it's hard to tell if you like a movie, given that you don't use the bourgeois "four-star" or "two-thumb" system -- or any other system, come to think of it -- to say if the movie actually was good or not.  I can't tell you how many reviews of yours I've read that focus on the star's "rangy" performance (whatever that means), or pontificate about the cinematography (whatever that means), but leave me, at the end, thinking, "wait a minute -- is he saying this is a good movie or not?"  And I did pretty well on the "reading comp" section of the LSAT.

        At some point, A.O. Snottypants, when you have such disdain for 99% of the movies that your readers actually go see, shouldn't you just stop being a movie reviewer?  If everything my multiplex is showing is lowbrow crapola, aren't you uniquely unqualified to write about what movies I should see?

        I know a law professor who seems to do nothing but call others' academic work "idiotic," "naive," and "simplistic."  His published work typically takes on some giant in legal academia and explains, in the hallowed pages of the North Central West Dakota Journal of Pretention and Law, why everyone is wrong and Famous Scholar is full of it.  At some point, it's hard to take this guy seriously.  A.O., you passed that point long ago.

         Please Stop,

         Scott Moss

Posted by Scott on May 18, 2006 at 10:13 AM in Culture | Permalink | Comments (19) | TrackBack

Wednesday, May 17, 2006

Why the Necessity Defense is Unneccesary

From a deterrence standpoint, I've never understood why there is such a thing as a necessity or duress defense in criminal law. The deterrence view of criminal law is that we choose punishments to deter judgment-proof individuals from committing acts that harm social welfare. If this is the case, then why bother with the necessity defense.  A harmful act is a harmful act, whatever the reason it was committed. There is no reason to allow harmful acts because we think the reasoning behind them was good.

Suppose a car with a deathly-ill passenger races through a red light en route to a hospital. If the driver was "charged" with the crime, she could plead necessity and get off with nothing. But the fact remains that she went through a red light and caused social harm. Accidents are more likely because of the violated red, however good the motive behind the violation. So I would argue that we should get rid of the necessity defense in this context. 


If we charge the driver with running the red light, then she would still probably run the light; the benefit of getting to the hospital sooner exceeds the cost of the ticket. In other words, the social benefit of the violation is greater than its cost. But this is not a reason for dropping the necessity defense. We want the driver to weigh the cost of running the light against its benefit. The best way to do that is to exclude the necessity defense and let the driver make the determination.

This analysis echoes the strict liabilityvs. negligence debate in tort law. The necessity defense is basically a negligence defense. The driver may have caused harm, but she wasn't negligent, and therefore she should get off. I am arguing for strict liability. If you run the red, you pay the penalty, even if we think running the red was a good idea. When it comes to dangerous activities (such as running red lights), strict liability has some big advantages (such as its ability to engender efficient activity levels). Basically, dumping the necessity defense is the best way to insure that "desirable" crimes are only committed when they are truly desirable.

I can think of several objections to this argument. One is that we don't want to give someone a ticket as they are racing to a hospital. This is true, but we could just give them the ticket later. A second is that part of the social harm of crime is its psychic cost and that a necessary crime has a lower psychic cost. I agree, but this is not a reaon to forget about the other costs. I am less outraged by someone running a red light while going to the hospital than someone running a red light for the fun of it, but there are still real costs to running a red light in any context.

Finally, I must concede that criminal law is not just deterrence based, and the necessity defense may have nothing to do with deterrence. I can't argue with that, other than to say that non-deterrence based tenets of criminal law have real costs, and that we shouldn't take these costs on without at least thinking about them.

Posted by Yair Listokin on May 17, 2006 at 05:30 PM in Criminal Law | Permalink | Comments (15) | TrackBack

How's our blogging?

Inspired by Lior's recent post and paper, entitled: “How’s My Driving?” for Everyone (and Everything?) (forthcoming NYU Law Review, Nov. 2006), I was thinking we should take another celebratory moment to note that the other day we passed a milestone: according to our sitemeter, we have passed over 1 million page views and over half a million visitors.  But in the frenzy of celebration of our one year anniversary and our growth in readership, not to mention the near-end of grading for the semester, we have collectively forgotten to ask our beloved community of readers what you would like to see happen in this space in the next year.  So shoot me an email with suggestions about how to redesign the web-page to make it better, whom you'd like to see guest-blog, or how to improve our collective driving...

Posted by Administrators on May 17, 2006 at 11:27 AM in Housekeeping | Permalink | Comments (0) | TrackBack

"Real" law in law school

Most of us have probably heard, from a student or colleague, or said, that a particular course or subject in law school is not "real" law.  Usually, this seems to mean (something like) the course is thought or asserted to be not "relevant" to "real world" law practice, or just "theory", or downright flakey.  A few times in recent weeks, while talking informally with students in social settings, I've heard this complaint about current course offerings -- "no real law."  (The offending courses include those that are perceived as perhaps owing too much to Notre Dame's idiosyncratic Catholic character -- "Catholic Social Thought and the Law", "Mercy and Justice", "Aquinas" -- but also courses like "International Art Law" or "Sports and Inequality.")

I'm still not sure how to respond to these complaints.  (After all, the offending courses are the ones that, in my view, are the ones most worth taking!)  I want to take seriously the concern they reflect, and not be too quick with a too-glib response.  Any suggestions?

Posted by Rick Garnett on May 17, 2006 at 10:55 AM in Life of Law Schools | Permalink | Comments (24) | TrackBack

Our Man in Tripoli?

For those of you wondering what's going on in Libya such that we now will have an American Embassy in Tripoli, I highly recommend reading Andrew Solomon's recent  hilarious, sad and astute depiction of life in Libya and what portends for its future.  Solomon's Letter from Tripoli appeared in the May 8th issue of the New Yorker.  It's not online, but there's a press release here that gives you a flavor of it. 

Solomon observes, “Few Libyans are inclined to test what civil liberties they may have.... The atmosphere is late Soviet: forbidding, secretive, careful, albeit not generally lethal.” And Qaddafi has by no means become a beloved figure. Solomon writes, “It is the most arresting of the country’s many paradoxes: Libyans who hate the regime but love Libya cannot tell where one ends and the other begins.”

One of the more interesting claims developed in the Solomon article is that Libya's involvement with Pan Am 103 may be overstated, and that various Scottish investigators now think there was a miscarriage of justice committed by implicating Libya.  This angle wasn't addressed much in the NYT coverage the last couple days, but I think it's rather remarkable that, if true, the Libyans have agreed to pay billions in hush money to clear their name.  The article was opaque on this issue, and Solomon didn't take a firm position, but this claim, I suspect, warrants more scrutiny.  Last, some reasons to speculate whether Qadhafi has really changed can be found at the FDD blog.

Posted by Administrators on May 17, 2006 at 10:41 AM in Current Affairs | Permalink | Comments (0) | TrackBack

Tuesday, May 16, 2006

MLB = Misusing Law Brazenly

Since I'm about to go away for a bit, I can't resist one more post on a bizarre IP dispute.  The NYT today covers Major League Baseball's insistence that "anyone using players' names and performance statistics to operate a fantasy league commercially must purchase a license."  Volokh spots the slippery slope here immediately:

"If anything, this case is even more impactful if the court rules for [MLB], because it will speak to any time you use a name in a commercial venture. . . . What if you use a historical figure's name in a historical novel? Or other games, like Trivial Pursuit? How about 'Jeopardy!'? Would they be liable as well? That seems to be the logical consequence of this."

Indeed.  And even more astonishingly, MLB took exactly the opposite litigation position in Gianfriddo v. MLB,  2001 Cal. App. Lexis 3089, where former players sued the league for violating their right of publicity.  There the court quite sensibly decided that putting someone's name in a program, and publishing stats about them, did not violate that person's right of publicity.

About the only basis for a claim here seems, to me, to be some chimerical engrafting of the Seinfeld quiz book case onto right of publicity laws (perhaps vitalized, ala the Oparin hypothesis, in a miasmic fog of misappropriation law).  Let's hope that doesn't occur...and that courts take this suggestion from Judge Posner seriously:

[C]opyright owners systematically make improperly broad claims to their rights. The book, DVD, or baseball-game broadcast that comes with a notice stating that no part of the work may be copied without permission is, in fact, in violation of the doctrine of fair use (for which one doesn't need permission). Posner argues that when a copyright holder affixes a warning on copies of his work that "grossly and intentionally exaggerates the copyright holder's substantive or remedial rights, to the prejudice of publishers of public-domain works, the case for invoking the doctrine of copyright misuse" has been made.

Jason Mazzone makes a similar argument against copyfraud.  But anyone want to stand up for MLB?

Posted by Frank3 on May 16, 2006 at 06:10 PM | Permalink | Comments (7) | TrackBack

Is "24" a "conservative" show?

Christopher Orr has an interesting essay, in the New Republic, about the show -- "24" -- that has turned out to be this year's television addication in the Garnett house.   After noting that "[c]onservatives . . . have been quick to read the show as a political parable, with [Agent Jack] Bauer's often ruthless methods serving as a flattering proxy for the Bush administration's steadfast, whatever-it-takes posture[,]" Orr insists:

[I]rresistible as it may be for conservatives to claim "24" as a ratification of their post-September 11 worldview, it's not one. This is in part because the show's politics aren't conservative in any meaningful way. But, more importantly, it's because the show is beyond politics altogether--or, perhaps more accurately, beneath them. "24" capitalizes shamelessly on the post-September 11 mood, but, for all its topicality and moral theatrics, it has never really come to terms with post-September 11 reality.

Orr also notes that the number of characters and details that might seem "conservative" are "dwarfed, in both number and significance, by the cast of liberal bugaboos: the shadowy businessmen who nefariously appear to pull the strings of more than one president; the vice president so eager to start a war in the Middle East that he uses the Twenty-Fifth Amendment to remove the more cautious president; and so on. It's also hard to imagine it a coincidence that David Palmer, the wise, stalwart, honest president of the early seasons, is a Democrat, and that the Republicans who succeed him are a scandalmonger and a Nixonesque weasel who ultimately proves to be at the center of a conspiracy to manufacture evidence that will enable the deployment of U.S. forces abroad."  Ultimately, in Orr's view, "the world that '24' envisions each week is less liberal or conservative than it is one from which political belief has been banished altogether."

There's a lot more.  I think Orr gets the show and its significance -- and its merits -- pretty much right.  One detail that he discusses, and that has stood out for me as well, is the show's strange mix between a strikingly thick-skinned utilitarianism --  i.e., Jack does what he has to do, period -- with, well, the opposite -- i.e., Jack and others routinely enganger thousands in order to promote or protect the welfare of their loved ones.  Anyway, check it out.

Posted by Rick Garnett on May 16, 2006 at 11:57 AM in Culture | Permalink | Comments (0) | TrackBack

Rearranging Deck Chairs

The Health Law Prof blog has a good post on planning for rationing avian flu vaccine.  I've attended a conference on the topic and I can understand why these plans need to be developed.  But some of the deliberations that are going on are really chilling.  Consider these reflections:

There is no debate that vaccine makers and medical personnel should be first to be immunized, because they will then be able to save many more lives. But deciding who follows is not an easy call, said Jon Abramson . . . (chair of one of two federal advisory panels that helped develop the current policy). . . . "Most people have the intuition to say, 'Give it to my 19-year-old. I got to 65; I've lived a good life,'" said Ezekiel Emanuel, head of the bioethics department at the National Institutes of Health. "We are not interested in purely the number of lives [saved], but also life-years."

I think there's a reason we don't hear too much about these types of plans--as we learned in the controversy over the Oregon plan to ration Medicaid, the more transparent such planning becomes, the more it gets mired in bitter (and perhaps unresolvable) political debate (as Jon Elster suggests).  Moreover, a profit-driven media has little reason to report stories people just aren't interested in...even if the consequences may be slightly more important than, say, the saga of Jessica and Nick.

Nevertheless, there's another reason to start talking about these tragic choices: getting people to question why the rationing must happen in the first place.  There have been a number of innovative proposals to increase vaccine supply.  As C. Wright Mills famously suggested, we can improve our society by getting individuals to see how personal problems ("how can I get my hands on flu vaccine?) have a larger, political dimension ("how can we best protect the country from pandemic?).  And even if Tamiflu isn't as effective as we hoped, that type of public attention to the overall problem is crucial. 

Posted by Frank3 on May 16, 2006 at 08:17 AM | Permalink | Comments (0) | TrackBack

Monday, May 15, 2006

Patent Injunctions and the Value of Technology Companies

SCOTUS issued an important patent opinion today in eBay v. MercExchange. (For a summary of the opinion, click here.) eBay says that courts should apply the same standards for issuing injunctions in patent cases as in other cases.  Commentators believe that the ruling makes injunctions less likely and weakens the ability of  "patent trolls" to expropriate value from technology businesses.

But is there any evidence that this is so? If the ruling is good for tech companies, then the stock market should have favored tech companies over non-tech companies today, all other things equal.  (This type of analysis is known as an event study.) There is no evidence that this happened. The Morgan Stanley high tech index fund (ticker: MTK)  finished down .13%. The S&P 500, my proxy for the performance of the market as a whole, was up .25%.  So if the market thought that the eBay decision was good for the value of tech companies, its not obvious from the data.

There are a few ways to interpret these results. 1. The market doesn't think that lowering the probability of injunctions in patent disputes is that big of a deal for technology companies. 2. The market expected the ruling, and therefore had already priced in the effects of lower injunction probabilities and less expropriation and 3. Other factors unrelated to the decision drove today's stock price movements and/or this methodology is worthless.

There is not much I can do to rule out 3, and I concede that a "study" like this with only one data point is far from precise. Still, its better than no data points. Moreover, event studies similar in methodology to this one but with more data and more careful statistics (which helps rule out the possibility that other factors are driving the results) have a long and honorable history in economics and finance.

I can do something to help distinguish between one and two. Even if the market expected the ruling, it probably didn't expect SCOTUS to grant cert in this case. Because cert raised the possiblity of a ruling that disfavored injunction (the decision below had favored injunctions), we would expect the Court's grant of cert to have a positive impact of the price of tech stocks. Again, our prediction doesn't hold up. On the day the Court granted cert (November 28, 2005), the tech index fund went down .6% while the S&P went down .7%. Thus, even when the market got wind of the presumably surprising information that the Court had granted cert and might reverse the pro-injunction ruling, it didn't view the news as particularly favorable to tech companies.

It is of course possible that other factors are causing these results. But if the eBay ruling were an enormous boon to tech companies, we would expect to see at least some evidence of this in market prices. We don't, and I'm therefore slightly more skeptical that injunctions in patent cases are the economic albatross they are somtimes claimed to be.

Posted by Yair Listokin on May 15, 2006 at 10:43 PM in Intellectual Property | Permalink | Comments (4) | TrackBack

Speaking of Caste

CrimProf Blog posted this link to this SSRN piece: Looking Deathworthy: Perceived Stereotypicality of Black Defendants Predicts Capital-Sentencing Outcomes.  Here’s the abstract:

Researchers previously have investigated the role of race in capital sentencing, and in particular, whether the race of the defendant or victim influences the likelihood of a death sentence. In the present study, we examined whether the likelihood of being sentenced to death is influenced by the degree to which a Black defendant is perceived to have a stereotypically Black appearance. Controlling for a wide array of factors, we found that in cases involving a White victim, the more stereotypically Black a defendant is perceived to be, the more likely that person is to be sentenced to death.

I saw the article the other day and didn’t post it (too depressing, exams piling up, etc.) but in light of Frank’s weekend post on skin lightening and the heated comments it has drawn, it was too suggestive to pass up. The piece is very short – five pages. Perhaps its most dramatic point is made by two photographs: two black males with slightly differing facial features. One has darker skin, broader lips and nose. The study indicates that such ‘stereotypically black’ features significantly increase the likelihood that a defendant will receive the death penalty.

There are numerous awful ramifications of the study but I’ll focus just on the potential implications for defense counsel. If East Asian women are feeling pressure to lighten their complexions for social caste reasons, might there be implicit pressure on capital defendants to ‘lighten up’? While defense attorneys routinely suggest to their clients ways to change their appearance for litigation purposes (nice clothes, new haircut, stop scowling), I think it would be considered unethical(?) to recommend that a client alter their physical racial characteristics, even if it might improve their chances at avoiding execution. Although certain ‘haircuts’ (e.g., cutting off dreadlocks) might already qualify as a racially coded alteration. Next month I am speaking at the Federal Public Defender’s annual conference on the social/ethical implications of client-centered practices. Until Frank’s post pushed me down this path, I hadn’t considered that client physical racial-identifiability might be such an issue. Of course, other sorts of defensive uses of race have been much debated. Compare Anthony Alfieri, Gideon in White/Gideon in Black: Race and Identity in Lawyering, 114 Yale. L.J. 1459 (2005) with Abbe Smith, Burdening the Least of Us: ‘Race-Conscious’ Ethics in Criminal Defense, 77 Tex. L. Rev. 1585 (1999).

Posted by SashaNatapoff on May 15, 2006 at 05:21 PM | Permalink | Comments (2) | TrackBack

Army "Justice": Gay=Expulsion w/ Dishonorable Discharge; Assulting Injured Troops=Slap on Wrist

In case you hadn't seen this unbelievable story about injured American soldiers being assaulted/tortured -- by other American troops, not by the enemy:

The Army has shaken up a program to heal recruits injured in basic training after soldiers and their parents said troops hurt at Fort Sill were punished with physical abuse and medical neglect.

Two soldiers in the program have died since 2004, one or possibly both of accidental overdoses of prescription drugs.

A civilian spokesman at the fort, Jon Long, said an investigation had substantiated "misbehavior" by a drill sergeant who, soldiers say, kicked a trainee with stitches in his knee. Mr. Long said the sergeant had been suspended and reassigned....  the Fort Sill spokesman[] confirmed that an investigation focused on accusations of physical and verbal abuse. He declined to discuss details because no one had been charged with a crime. But Mr. Long said the initial findings did substantiate the reports of misbehavior by the drill sergeant, who was said to have kicked the soldier and who along with another drill sergeant received "administrative disciplinary action."

Gotta love the Army's tough-on-crime approach... oh, wait, I forgot, "no one had been charged with a crime."  Interesting that if the sergeant were not (a) a sadistic SOB basically inflicting torture on vulnerable American troops, but instead were (b) a gay man who had committed no "misdeed" other than gay sex, he'd be gone with a dishonorable discharge -- not just "reassigned," "suspended," or subjected to "administrative disciplinary action."

Which is more a threat to national security: a sergeant who likes to have sex with men rather than women, or a sergeant who assaults an innocent, vulnerable American soldier -- at a time of a troop shortage, no less?  When you juxtapose the military justice system's punishment for treasonous torture and that its punishment for gayness, is there any conceivable way to defend it?

In constitutional law cases involving the military, there's often a subtext of judicial deference to the military managing its own affairs.  E.g., Korematsu v. US (1944) (upholding Japanese internment camps); Goldman v. Weinberger (1986) (upholding discipline of Orthodox Jewish pilot who wanted to wear yarmulke, contrary to headgear regulations).  I've never been a fan of those cases, but this latest incident is getting me more and more convinced: the military is no more worthy of deference than any other employer or government body; and deferring to the military when it allows egregious misconduct is more likely to harm than help our national security.

Posted by Scott on May 15, 2006 at 11:10 AM | Permalink | Comments (11) | TrackBack

Sunday, May 14, 2006

On Breyer and Democracy

I've finally read Justice Breyer's Active Liberty, one of those books that you think you might not have to read because there are so many reviews floating about, many as long as the book itself.  Still, I dutifully read it and find myself rather underwhelmed.  I can only assume it is being widely read because of the position of its author, something not terribly uncommon.

The core thesis seems to be that the Constitution underwrites a conception of "active liberty" -- the liberty for citizens to participate freely in self-governance -- and that judges deciding constitutional cases should use this principle in adjudicating disputes and interpreting the Constitution and statutes in close cases.  The idea that democracy was a core concern of the Framers is a somewhat controversial proposition -- the wealthy landowners that set up our government didn't think to put the word democracy in the founding documents.  Yet given our contemporary commitment to liberal self-government, the idea that democracy should animate interpretation in close cases is hardly radical.

But democracy -- of the 'real' sort, where average citizens participate in governance and exercise some of the 'active liberty' central to the book's project -- doesn't actually figure much in Breyer's examples, when he purports to apply his principle.  His discussions of the First Amendment and federalism show some signs of caring about core democratic principles: he thinks First Amendment jurisprudence should be a fragmented area of law where core political speech gets more protection than commercial speech (rather than "speech is speech" types who do not so fragment the area); and he thinks federalism jurisprudence should get more sensitive to experiments in cooperative federalism (rather than allowing a commandeering rationale to prohibit federal-state interactions, a rationale which, in turn, incentivizes even larger federal bureaucracies).

But his four other examples seem only tangential to 'active liberty.'  His section on privacy is focused on remaining sensitive to technological innovation, which requires practicality and focus on consequences in judicial decision-making.  Where's citizen democracy and democratic participation there?  In his section on affirmative action, he argues for a choosing a purposive and remedial conception of the Equal Protection Clause rather than the colorblind version of Justice Thomas.  Is that about local citizen empowerment?  In the context of statutory interpretation, he endorses purposive approaches over textual ones.  The democratic rationale for that preference is flimsy; legislators may be closer to the people than judges -- but, as Justice Scalia has argued with force, there is a good democratic rationale to using textualism to make legislators perform their job for the people better.  Finally, in his discussion of administrative law, he endorses Chevron as a "rule of thumb" rather than as an absolute rule, proposing an inquiry into legislative motive through a "what would a reasonable member of Congress think" heuristic.  Again, nominally democratic -- but a harsh Chevron application has similarly arguable democratic merits: executive agencies facilitate more immediate electoral accountability than the "reasonable member of Congress" who is a fiction so cannot be voted out of office.

If pressed, I don't really think Breyer could say that democratic active liberty is the core of the book.  Instead, he sees ours as a "delegated democracy," a phrase that appears many times in the book and probably would have been a better title.  Behind "delegated democracy" is something less democratic than a principle of active liberty of each citizen to participate in self-governance: it is rule by professional politicians and technocrats who make consequentialist decisions.  The role of the judge is no different in this view of "delegated democracy;" the courts have certain institutional competences and they ought to make pragmatic, consequentialist decisions within their realm of expertise.

There was a time when active liberty was promoted by a constitutional theory of judicial review known as "representation-reinforcement."  That theory had real democratic credentials, I think.  Breyer's doesn't. 

Posted by Ethan Leib on May 14, 2006 at 03:52 PM in Books | Permalink | Comments (0) | TrackBack

The Commodification of Caste

The NYT has a piece today on the dangers of "face-whitening" cream in East Asia.  Apparently many individuals (currently, mainly women) are using "powerful but illegal bleaching agents" to appear paler.  Obviously there are deeply troubling racial and gender dynamics at work here, but I'd like to focus on a dilemma in innovation policy.  What would happen if the cream became much safer, but also much more expensive?  Should we welcome that development?

Obviously, if people insist on using the cream, it should be as safe as possible.  But innovation here would also likely accelerate the commodification of caste. So rather than trying to develop safer whitening agents, wouldn't it be better to ban them altogether? Even a libertarian would have a hard time arguing that this type of "appearance competition" doesn't violate the harm principle. 

A caste-creating process in our midst teaches some valuable lessons.  As Susan Starr Sered and Rushika Fernandopoulle argue in Uninsured in America,

The current American system in which health care is linked to employment is creating a caste of the chronically ill, infirm, and marginally employed. . . . Sick, lacking reliable health care, and locked in employment situations that do not offer medical benefits, they find it increasingly difficult to escape. . . . Illness itself constitutes a physical marker: rotten teeth, chronic coughs, bad skin, a limp, . . . --all of these signal caste in basic ways.

So ill-health is not simply the result of a poor employment situation but also often its cause.  Many employers who offer health insurance will glance at applicants' "physical markers" of lack of health and dental care in the past and refuse to hire them on the basis of unfair presumptions about the cause of that lack of care. When badges of caste become commodified, we have to start thinking about legal intervention to stop self-reinforcing stratification.

Posted by Frank3 on May 14, 2006 at 07:38 AM in Current Affairs, Law and Politics, Legal Theory | Permalink | Comments (18) | TrackBack

Friday, May 12, 2006

Ex Rel. Gaines: Healing the Past in Missouri

I teach at the University of Missouri Law School, which will forever be known for Ex Rel. Gaines, in which the Supreme Court struck down the Missouri state law that maintained an all-white public law school but no equivalent public law school for black students.  The Court held that "the State was bound to furnish him within its borders facilities for legal education substantially equal to those which the State there afforded for persons of the white race, whether or not other negroes sought the same opportunity."  The case served as the crucial first step toward racial equality in education in this country.   

This weekend, the University of Missouri will posthumously award Lloyd Gaines an honorary degree.  It is long overdue.  After his victory at the Supreme Court, Gaines disappeared in Chicago in 1939; he never had the opportunity to study for the degree to which he was entitled.  Many of us on the law faculty supported the petition to grant Gaines this honorary degree -- notwithstanding university policy against granting posthumous degrees.  It is, of course, a symbolic gesture.  But it is not without meaning, and comes on the heels of efforts by other southern state universities to grapple with their past wrongs.  (See this link for law professor Al Brophy's successful efforts to get the University of Alabama to apologize for complicity in slavery.)  Here is an exceprt from the University of Missouri press release:

In 1936, Lloyd Gaines applied to MU's School of Law, but was denied admission. Gaines eventually took his case before the U.S. Supreme Court and, on Dec. 12, 1938, the court ordered the state of Missouri to admit Gaines to MU or to provide him access to education at an institution of equal stature within Missouri's border. This decision contributed significantly to the battle to end racial segregation in schools, which culminated in the 1954 landmark case Brown v. the Board of Education. On March 19, 1939, Gaines left his fraternity house in Chicago to buy stamps and was never seen or heard from again. At MU, the Gaines-Oldham Black Culture Center and a scholarship awarded by the MU School of Law have been named in his honor.

"We may never know what happened to Lloyd Gaines," said Mike Middleton, deputy chancellor. "What we do know is that this University has benefited greatly from what Lloyd Gaines did for us, for the State of Missouri, and for the nation. He made the initial move that opened the doors of the University to all Missourians and played a monumental role in the struggle to force America to live up to its promise to all of its citizens."

Lloyd Gaines' nephew, George Gaines, will receive the degree on behalf of the Gaines family. 

Posted by McguinnessM on May 12, 2006 at 04:58 PM in Life of Law Schools | Permalink | Comments (0) | TrackBack

Hung Juries and What To Do About Them

I have an article on the subject on Findlaw today.  Check it out

Posted by Ethan Leib on May 12, 2006 at 11:25 AM in Article Spotlight | Permalink | Comments (7) | TrackBack

Habeas Primer

Except during the recent Lou Fisher brouhaha (as described at TPMCafe, and here by Secrecy News) , little is ever said about the wonderful work of the Congressional Research Service. I've found CRS Reports to be among the most well-researched, objective, and helpful teaching tools out there, and there's a new one out, forwarded to me by one of the (fantastic) reference librarians here at UM, about habeas corpus.

Here's the Report.

I've been trying to figure out how to reincorporate federal habeas into my Federal Courts syllabus for the Fall, and this report might just be the answer. In 40 pages (not including the bibliography), the folks at CRS have covered most of the major Supreme Court cases, recurring topical issues, and even a large chunk of the history of the "Great Writ." An invaluable resource for professors, it may well be even more helpful to students, who are otherwise often left to impenetrable casebook discussions of the Court's complicated, if not convoluted, habeas jurisprudence. [And there's even an "Abridged" Version.]

I spend enough time on the Blawg criticizing or otherwise lamenting the inadequacies of things so, for once, I thought I'd use the proverbial microphone for praise...

Posted by Steve Vladeck on May 12, 2006 at 09:16 AM in Steve Vladeck, Teaching Law | Permalink | Comments (2) | TrackBack

Thursday, May 11, 2006

Election Law Super-Blogging

Brian Leiter recently claimed that it is extremely rare for leading lights of a field to blog about the substance of their research areas, to wit:

The . . . main limitation of blogs as forums for serious scholarly debate--tactfully not noted by Kate [Litvak]--is that only a miniscule number of first-rate legal scholars in any field actually blog on scholarly topics; indeed, if you subtract the Chicago faculty blog and Balkinization, "miniscule" may overstate the number of leading lights in their fields who blog in their areas of scholarly expertise (you can probably count the remainder on one hand).  I find it hard to see how blogs can have much significant scholarly impact when the most significant scholars rarely participate in the forum, or, at least, rarely participate for scholarly purposes. 

To be sure, Brian backed off his argument a bit in an update.  Yet he failed to mention Rick Hasen and his Election Law blog; Rick is clearly a leading light in his field -- and the blog is devoted to his research area.  Now that blog will get even more interesting with the following upcoming (leading light) guest bloggers discussing VRA renewal: Guy Charles, Heather Gerken, Pam Karlan, Nate Persily, Rick Pildes, and Dan Tokaji.  Only Issacharoff is missing the party!

Posted by Ethan Leib on May 11, 2006 at 03:02 PM in Blogging | Permalink | Comments (3) | TrackBack

Minima Moralia: 1% for the Global Poor?

Imagine tycoon A gives 600 million dollars to fight  TB infections in the developing world, and tycoon B gives a similar amount to art museums.  Is one donation morally better than the other?  Does one answer a more compelling need?

I've been thinking about these questions lately as I'm trying to convert an old essay on "the cost of conscience" into a proposal to change the tax law of charitable giving to better incentivize donations that meet urgent human needs.  (I'm presenting it at the normative political theory section of the American Political Science Association conference in Philadelphia this August.  I highly recommend the conference--it's so huge, there's something for everyone.)

I really should be doing the tax research now...but I'm still stuck for a bit responding to people like James Otteson, Leif Wenar, and Peter Berkowitz, who tend to characterize charitable giving to people in LDC's as a supererogatory (i.e., non-mandatory) duty.  They target hard-core utilitarians like Peter Singer, who once claimed that all we make over $30,000 per year should go to the global poor. 

Such an extreme claim makes a fat target. But what about a more modest claim? For example, a claim that, barring compelling circumstances to the contrary, someone in a developed country making over $65,000 per year should donate 1% of after-tax income to projects like the ones sponsored by Global Giving or Kiva?  I think it makes sense to make contribution to a social minimum part of our own personal "moral minimum."  We have to start somewhere.

Posted by Frank3 on May 11, 2006 at 02:46 PM | Permalink | Comments (10) | TrackBack

Luttig's Seat: My Bid in the Reverse Auction

The Washington Post reports what many suspected was obvious -- that the departure of Judge J. Michael Luttig from the Fourth Circuit was basically financially motivated:

Friends of Luttig said yesterday that the financial lure of the Boeing job and the greater ability to pay for his children's college education -- Luttig has a 14-year-old daughter and a 10-year-old son -- were key to his resignation.

The article notes that Luttig's 2006 salary is $171,800.  Sure, his Boeing salary likely will be many times higher.  But isn't a $171,800 salary (which he has been earning for the past 15 years, subject to small annual federal pay increases) enough to pay for college for his two kids -- who, at ages 14 and 10, presumably still have a few more years left before the tuition bills start arriving?  Can someone point me to the folk song about the guy who couldn't afford college for his two young'uns because he earned only $3.4 million over 20 years as a high-level judge?  Cf. Bon Jovi, Living on a Prayer:

He's down on his luck -
It's tough, so tough.
Gina works the diner all day
working for her man
She brings home her pay
for love, for love.

Ok, maybe I'm being too hard on the dude.  College ain't cheap, and given Luttig's precocious ascension to the bench at 37, maybe at 14 and 10 his kids are about ready to start at Yale.

Regardless, I do not have Luttig's expenses, and I'm a fairly frugal guy, so let me use the soapbox of Prawfsblawg to make President Bush this offer: I'll do the job for just $170,800, which means a $1,000 savings for the American people!

Look, Mr. President, I know it sounds crass to start a reverse auction for federal judgeships.  But if judges can start paying capitalist hardball in their employment negotiations, why can't you?  Luttig was a judicial trendsetter, and the last thing you need is for him to start giving other judges ideas.  You need to send them a message: You ingrates don't like your $171.8?  Well, I can get me some cheap labor from legal academia. How 'bout them apples?  You can call it a "judicial guest worker" program, President Bush.  No need to pay me for this idea, incidentally -- this one is on the house.

Posted by Scott on May 11, 2006 at 11:24 AM | Permalink | Comments (23) | TrackBack